McNeill v. Atlantic Coast Line R. Co.

• Decision Date: 13 May 1909
• Citation: McNeill v. Atlantic Coast Line R. Co., 49 So. 797, 161 Ala. 319 (Ala. 1909)
• Parties: MCNEILL v. ATLANTIC COAST LINE R. CO.
• Court: Alabama Supreme Court

49 So. 797

161 Ala. 319

MCNEILL v. ATLANTIC COAST LINE R. CO.

Supreme Court of Alabama

May 13, 1909

Appeal from Circuit Court, Crenshaw County; J. C. Richardson, Judge.

Action by J. W. McNeill against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

R. L Harmon, for appellant.

A. A Wiley, for appellee.

MAYFIELD J.

This was an action by appellant against appellee for the failure to deliver a car load of cypress lumber delivered by appellant to defendant as common carrier at Luverne, Ala., to be shipped to Cincinnati, Ohio, for a reward. The appellant was both the consignor and consignee. The complaint as last amended consisted of three counts, denominated A, B, and C respectively. Each count is substantially in the form prescribed by the Code for actions on a bill of lading of common carriers. Form 15, p. 946, of the Code of 1896. Counts A and C claim damages for failure to deliver generally, while count B is for failure to deliver within a reasonable time. Each count is an action against a common carrier for breach of a contract of shipment, and is ex contractu. Southern Ry. Co. v. Rosenberg, 129 Ala. 287, 30 So. 32.

The defendant filed seven pleas, denominated numerically 1, 2, 3, 3 1/2, 4, 5, and 6. The plaintiff, demurred to each of these pleas, except No. 1. Demurrer was sustained as to pleas 3, 3 1/2, and 4, and overruled as to pleas 2, 5, and 6. No. 1 being the general issue, there was no demurrer thereto. To these pleas 2, 5, and 6, which were special pleas, as to which plaintiff's demurrer was overruled, he filed six replications, numbered 1 to 6, inclusive. To each of these replications, except 1, defendant demurred, to each of which the demurrer was sustained. The trial was had upon issue joined upon the plea numbered 1, which was the general issue, and special pleas 2, 5, and 6, which resulted in verdict and judgment for the defendant, from which judgment the plaintiff appeals, assigning as error each of the adverse rulings of the court upon the pleadings as above set forth. There is no bill of exceptions; appeal being taken upon the record proper, and the only errors assigned being those upon rulings on the pleadings as shown by the record proper.

As before stated, each count of the complaint alleged a contract of shipment, made between the parties to the suit on May 27, 1905, of a car load of cypress lumber to be shipped from Luverne, Ala., to Cincinnati, Ohio, and to be there delivered to the plaintiff, setting up a breach of said contract and failure to deliver; two of them alleging failure to deliver generally, and the other a failure to deliver within a reasonable time. It will be observed that these counts are practically in the Code form, and that there is no allegation, in the Code form or in these counts, as to whether the contract of shipment was oral or in writing, but only that the goods were received by the defendant as a common carrier to be delivered to the plaintiff at Cincinnati, Ohio, and that, after receiving, the common carrier failed to deliver.

Plea 2 alleges as a defense to the action that its line extended only from Luverne, Ala., where the freight was received, to Montgomery, Ala., and that in order for the shipment to be carried to Cincinnati it was necessary for it to be delivered by the defendant at Montgomery to a connecting line; that it was agreed between the parties in the contract of shipment that the liability of the defendant, on account of contract of shipment, should cease when it should deliver the car load of lumber to such connecting carrier in the city of Montgomery, Ala.; that it so delivered the car of lumber to the Mobile & Ohio Railroad Company, a connecting carrier, in the city of Montgomery, Ala.; and that the plaintiff sustained no damages while the freight was in possession of the defendant. Plea No. 5 is in substance the same as plea No. 2. It denies that defendant had any contract with the plaintiff that the car should be delivered at Montgomery to any particular connecting carrier, and avers that the defendant promptly transported the car from Luverne to Montgomery, Ala., and there delivered the same to the Mobile & Ohio Railroad Company, which formed a connecting line between Montgomery and Cincinnati, and that the car of lumber was carried over said line to Cincinnati. Neither of these two pleas allege whether the contract of shipment was oral or in writing.

Plea No. 6 alleges that on May 31, 1905, the defendant issued a bill of lading to plaintiff at Luverne, Ala., for transportation of the car load of lumber in question, which bill of lading was in writing, and a copy of which was attached and made a part of the plea; that the defendant was the initial carrier, and that its line extended only from Luverne, to Montgomery, Ala.; that this bill of lading constituted the sole contract between the parties for the shipment, and that by the terms thereof it was expressly stipulated and provided that "no carrier was bound to carry the property by any particular train or vessel, or in time for any particular market, or otherwise than with as reasonable dispatch as its general business will permit"; and also that "no carrier shall be liable for damages or loss not occurring on its portion of the route, nor after said property is ready for delivery to consignee." It further alleges that the car of lumber, in the due course of business, was delivered by the defendant, the receiving carrier, to the Mobile & Ohio Railroad Company an intermediate carrier, at Montgomery, Ala., for transportation to Cincinnati, Ohio, for delivery to the plaintiff as consignee at that point; that when so delivered it was in good order and condition, and that the intermediate carrier receipted the defendant for the same as being in good order and condition at the time so received; that the intermediate carrier transported it to the point of destination named, and had it on hand, in good condition for delivery to the plaintiff, but that he was not present to receive it, and that he never called for it, and that it was stored in a safe place for a reasonable time, and that plaintiff refused to receive it.

We do not think it can be denied that each of these pleas stated a complete and perfect defense to any cause of action alleged in any count of the complaint, and that they are not subject to any ground of demurrer assigned thereto (and, so far as the writer of this opinion can see, are not subject to any other ground of demurrer, though as to this there is no intention to decide, because not necessary, and would be dictum, if so attempted). One ground of demurrer alleged was that the pleas should have attached as an exhibit or set out the specific contract of shipment alleged, or the particular clause thereof relied upon as a defense in said plea. A sufficient answer to this ground of demurrer is that pleas Nos. 2 and 5 did not allege that the contract was in writing. If oral, it was sufficiently set out, and could not be attached, and it was not necessary for the contract to be in writing, nor was it necessary to allege whether it was oral or in writing; but as to the sixth plea it alleged that the contract was in writing, and attached a copy thereof as a part of the plea, but this is entirely too lengthy and copious to be set out in this opinion.

Another ground of demurrer assigned and insisted upon was that the pleas failed to show any consideration to the plaintiff for the agreement. This, of course, is without merit, for that the fact of shipment alone by the defendant was a sufficient consideration to support any lawful agreement between the parties as to the terms of shipment.

Another ground of demurrer alleged and insisted upon, as to plea No 2, is that it fails to...